Covington v. State, No. 174S25

Docket NºNo. 174S25
Citation262 Ind. 636, 322 N.E.2d 705, 45 Ind.Dec. 576
Case DateFebruary 11, 1975
CourtSupreme Court of Indiana

Page 705

322 N.E.2d 705
262 Ind. 636
Michael COVINGTON, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 174S25.
Supreme Court of Indiana.
Feb. 11, 1975.

[262 Ind. 638] Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John D. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged with murder in the first degree and convicted in a trial by jury of murder in the second degree and sentenced to imprisonment for an indeterminate term of not less than fifteen (15) nor more than twenty-five (25) years under the statute. 1

Page 706

The sufficiency of the evidence was challenged by several motions and a tendered instruction which would have withdrawn the issue of murder in the second degree from the jury and, in effect, discharged the defendant upon such offense.

The victim of the homicide was the defendant's two-month-old daughter. Evidence of numerous physical abuses of the child by the defendant are not disputed, but counsel contends that there was not sufficient evidence to sustain a finding that an injury or injuries inflicted by the defendant caused the death and, in the alternative, that there was not sufficient evidence that the injuries inflicted by the defendant were inflicted with the statutorily requisite purpose and malice. These are factual considerations to be determined and reviewed in accordance with established rules. The following, although quoted from the dissenting opinion in Hutchinson v. State (1967), 248 Ind. 226, 240, 225 N.E.2d 828, 837, cited by the appellant, succinctly summarizes the governing axioms:

[262 Ind. 639] 'All the above are questions of fact for the jury. Baker v. State (1964), 245 Ind. 129, 195 N.E.2d 91; Wahl v. State (1951), 229 Ind. 521, 98 N.E.2d 671. The leading case of Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641 clearly defines our duty in regard to questions concerning the sufficiency of evidence. While this court will not weigh the evidence, it must be determined if there was substantial evidence of probative value from which the jury could have inferred the guilt of the appellant. By substantial evidence, I mean more than 'seeming or imaginary'. The rule is that a verdict on which reasonable men might differ will not be set aside. However, if no reasonable man could find that the evidence has proved an accused guilty beyond a reasonable doubt, then the verdict is not sustained by sufficient evidence. Additionally, it should be stated that to prove a fact or allegation beyond a reasonable doubt requires more than proof by a preponderance of the evidence. See also Epps v. State (1963), 244 Ind. 515, 526, 192 N.E.2d 459; Anderson v. State (1959), 239 Ind. 372, 378, 156 N.E.2d 384.'

The evidence disclosed that the defendant resided with his wife, Rosemary, and two children--a son, Michael, Jr., three years old, and a daughter, Hazel, two months old, who was the victim.

In mid-January, 1973, the defendant took the baby by her arm and shook her. She continued to cry. He put her on the couch and placed one of his knees on the couch and the other on the baby's stomach and chest. Her voice was muffled and she stopped crying for awhile but started again. He held the baby's blanket over her head and held her by one arm and beat her in the back with his fist. Later in the day, Defendant threw a bottle at the baby and then poured water over her face and stuffed a belt into her mouth--all in an effort to make her stop crying. The person who witnessed and testified to this called the police, but when the matter was investigated, both that person and the defendant's wife lied about the incident, and no arrest was made. The baby was examined medically and x-rayed following this incident, but no serious injury was revealed.

[262 Ind. 640] On January 28, 1973, the family was at the home of Rosemary's aunt. When they returned to their home, the baby was crying. The defendant grabbed her and choked her. He took her by the leg and slapped her against something--it was not disclosed what. Shortly thereafter, the defendant and Rosemary became suspicious that the baby had a broken arm. This supicion was confirmed a little later at the hospital.

On January 30, 1973, at about 9:00 p.m., the family again returned from a visit to

Page 707

the aunt's house, and the baby was crying. This time the defendant grabbed the baby and choked her. He held her...

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14 practice notes
  • Andrews v. State, No. 57A03-8801-CR-1
    • United States
    • Indiana Court of Appeals of Indiana
    • October 19, 1988
    ...is not sustained by sufficient evidence. Phelps v. State (1983), Ind.App., 453 N.E.2d 350; Covington v. State (1975), 262 Ind. 638, 322 N.E.2d 705; Hutchinson v. State (1967), 248 Ind. 226, 225 N.E.2d Walters v. State (1986), Ind., 495 N.E.2d 734, 736. Applying the above standards, we concl......
  • Andrews v. State, No. 1-1185A295
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 1987
    ...of the rights of the other waiting voters. Andrews is presumed to have intended the consequences of his acts. Covington v. State (1975), 262 Ind. 636, 643, 322 N.E.2d 705, 708; Emery v. State (1968), 250 Ind. 500, 504, 236 N.E.2d 28, 30. In addition, criminal intent to commit a specific cri......
  • Neff v. State, No. 3-1276A292
    • United States
    • Indiana Court of Appeals of Indiana
    • August 14, 1978
    ...v. State (1977), Ind., 359 N.E.2d 244; or from any deliberate or cruel act by one person against another. Covington v. State (1975), 262 Ind. 636, 322 N.E.2d 705; Corbin v. State (1968),250 Ind. 147, 237 N.E.2d 376; Wahl v. State (1951), 229 Ind. 521, 98 N.E.2d The inference of malice thus ......
  • Morris v. State, No. 1075S303
    • United States
    • July 7, 1977
    ...in their general usage may nevertheless be regarded as lethal when utilized in a harmful manner. Covington v. State, (1975) Ind., 322 N.E.2d 705, 708. The jury heard all of the evidence and determined that the defendant was guilty of second degree murder. That finding was proper, and we wil......
  • Request a trial to view additional results
14 cases
  • Andrews v. State, No. 57A03-8801-CR-1
    • United States
    • Indiana Court of Appeals of Indiana
    • October 19, 1988
    ...is not sustained by sufficient evidence. Phelps v. State (1983), Ind.App., 453 N.E.2d 350; Covington v. State (1975), 262 Ind. 638, 322 N.E.2d 705; Hutchinson v. State (1967), 248 Ind. 226, 225 N.E.2d Walters v. State (1986), Ind., 495 N.E.2d 734, 736. Applying the above standards, we concl......
  • Andrews v. State, No. 1-1185A295
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 1987
    ...of the rights of the other waiting voters. Andrews is presumed to have intended the consequences of his acts. Covington v. State (1975), 262 Ind. 636, 643, 322 N.E.2d 705, 708; Emery v. State (1968), 250 Ind. 500, 504, 236 N.E.2d 28, 30. In addition, criminal intent to commit a specific cri......
  • Neff v. State, No. 3-1276A292
    • United States
    • Indiana Court of Appeals of Indiana
    • August 14, 1978
    ...v. State (1977), Ind., 359 N.E.2d 244; or from any deliberate or cruel act by one person against another. Covington v. State (1975), 262 Ind. 636, 322 N.E.2d 705; Corbin v. State (1968),250 Ind. 147, 237 N.E.2d 376; Wahl v. State (1951), 229 Ind. 521, 98 N.E.2d The inference of malice thus ......
  • Morris v. State, No. 1075S303
    • United States
    • July 7, 1977
    ...in their general usage may nevertheless be regarded as lethal when utilized in a harmful manner. Covington v. State, (1975) Ind., 322 N.E.2d 705, 708. The jury heard all of the evidence and determined that the defendant was guilty of second degree murder. That finding was proper, and we wil......
  • Request a trial to view additional results

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